I'm cross-posting this from back home, because I think it really is important to start thinking and/or acting on two fronts in response to the USSC decision today.
Although I didn't order them this way in my post, the first and most important is something that is doable - at least if we can get a veto-proof majority or hold it until there is a new President. That is to amend the Partial Birth Abortion Ban Act to provide exemptions for women's health. If nothing else, it should be amended to provide exemptions for women's life or possible permanent disability. This is something that we can call and write our legislators about tomorrow.
The other may be far-fetched, but it's something that is also needed: a Constitutional amendment making explicit that people have a right to seek needed medical treatment.
Of course, many will wish to see a Constitutional amendment making abortion an explicit right. I don't disagree. I just see something that we should do even if we cannot do that, even if we do nothing else. The post is entitled A Large Fraction?... below the fold...
Writing for the majority, Justice Anthony M. Kennedy said opponents of the ban "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." (-link
I'm still mulling this over. I won't jump out there and say I'm smarter than the Supreme Court, that the decision was wrong. But it does disturb me. Here's why.
First - what the heck does that mean, "a large fraction of relevant cases?" Is Kennedy saying that laws which are unconstitutional are ok, so long as they are only unconstitutional in a "small fraction of relevant cases"? What does that mean for those cases? Should the doctors consult a lawyer, and if advised that the case under discussion is one of those "small fraction", then go ahead with the procedure, then file an appeal if convicted under the law? Should he put the patient into suspended animation so that he can get a ruling on his particular case before it is too late? Or, does constitutional law just not matter in those cases within that "small fraction"?
Next - the question of constitutional law on this is whether the legislation passes the "health exception" test of Roe v. Wade. Despite lacking any health exceptions, even at the level of death or debilitation, the court found that the law passed. I'm assuming that the reason a health exception wasn't necessary for this law was that the government convinced the court that there existed other safe options (at least in "a large fraction" of cases). But, I'm not sure. The only other option I can think of is that the court just overturned the health exemption portion of the Roe v. Wade decision, and stare decisis be damned.
If it is the former, then the court - rightly or wrongly - just declared itself and a group of politicians more capable of deciding what options are safe enough medically in cases like, for instance, severe fetal hydroencephaly than the medical community. If it is the former, then they have also overturned the health exemption portion of Roe v. Wade as it applies to anything less than a "large fraction" of cases.
If it is the latter, and they have overturned the health exception outright, then that is even more discomfiting. Even among the majority of those who are pro-life/anti-choice*, there is respect for the importance of a woman's health and life. And even if there wasn't there should be. To overturn just this portion of Roe seems rather perverse.
I think that, as a result of this ruling, it may be important to enshrine in the Constitution a woman's right to medical treatment to preserve health and life, via an amendment process. Actually, I think that a person's right to medical treatment to preserve health and life should be so enshrined, just in case there comes a time when Congress feels moved by purely ideological reasons to ban medical procedures that men need as well (fat chance, I know). Obviously, many of us believe those rights are already implicit in the Constitution - but apparently there is a need to make them explicit.
Short of a constitutional amendment - well, really, in any case, we also need to work on electing politicians who care about women's health and life. Politicians who would not dream of passing a ban such as this one into law without adequate protections for women's health and life.
Perhaps there are congresscritters even now who could be persuaded to introduce legislation to amend the so-called "partial birth abortion" ban to include the necessary exceptions. Have you written or called yours? I haven't - but I will tomorrow.
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*Here, I mean everyday people - not the politicians, preachers, demagogues & boondogglers who lobbied for this bill, sponsored it, or voted for it to begin with. To many of those people, women's health and life comes in second to their desire for political power. However, the average person in the pews - not in the pulpit - who opposes abortion does care about women's health.